Tense with the Tenth

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

10^th Amendment to the Constitution

As the federal government has used its control over interstate commerce in addition to the other specific empowerments of the Constitution to rise above and preempt state law and policy, states have railed in rebellion, often with limited success. The battle lines formed almost as soon as our Bill of Rights (which contains the 10^th Amendment) passed centuries ago. Sometimes federal money for state projects is conditioned on adopting federal compliance standards. The realities we take for granted, federal income tax, environmental protection, the mandate that State’s contribute to Medicaid, educational standards, etc. are all born of this struggle. But with 39 states facing significant fiscal deficits and the plethora of federal legislation and compulsory legislation, the rebellion by states against the federal government appears to be resurfacing.

The evidence of this rebellion are everywhere, according to the March 17, 2010 New York Times. Utah and Oklahoma are proposing statutes to exempt them from participating in any federally mandated healthcare plan. On March 17^th, Idaho Republican Gov. C.L. ‘Butch’ Otter, a Republican, signed a bill requiring the state attorney general to sue the federal government if Idaho residents are forced to buy health insurance. 37 other states have bills like this pending on their dockets. Utah is also considering legislation that would allow the state to seize federal land under its eminent domain statutes. Wyoming and South Dakota passed laws exempting guns manufactured and used within their states from federal firearms legislation. Washington, Alabama and Tennessee are looking as possibly amending their state constitutions to denote their local police powers as superior to any police powers asserted by the federal government. Rhode Island, Vermont and Wisconsin, objecting to the use of their National Guard in the wars in Iraq and Afghanistan, are looking at potential laws bringing back those state troops under their local state control. Similar legislation is pending in 37 other states.

Whether the concern is with big federal spending and massive new federal programs, which the Tea Party movement seems hell-bent on challenging, or taking local Guard volunteers into unpopular wars, there are movements left, right and center aiming to curb federal power. But this is battle that states seldom win in this modern world. “[Many] scholars say the state efforts, if pursued in the courts, would face formidable roadblocks. Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist p rinciple rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s… ‘Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,’ said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. ‘It’s pretty difficult to imagine a way in which a state could prevail on many of these.’”

We have the these fights forming at the strangest levels. California recognizes medical marijuana laws but the fed doesn’t, so you had the anomalous result of DEA and FBI officers busting state-sanctioned medical marijuana dispensaries… until a directive from the Obama administration moved away from federal enforcement. The fed often use big sticks to force states to adhere to federal standard. Refuse to impose federal speed limits on your roads? OK, no federal money in your state for highways, etc. Won’t apply federal educational standards to your schools… there goes the federal contribution to public schools in your district.

Is this (i) resurgence in support of states’ rights over those of the federal government combined with (ii) the literal split of the Congress (particularly the Senate) with an apparently Republican immoveable voting block effectively stopping the federal government from passing any new major legislation without that minority approval a sign that the United States is breaking apart, ceasing to function as a government? Or is this just a phase that will pass as the economy improves? What’s your opinion?

I’m Peter Dekom, trying to read the tea leaves and coffee grounds.